HKSAR v. MOK CHI ON

HCCC 167/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 167 OF 2013

-----------------

---------------------------------

Transcript of the Audio Recording

of the Sentence in the above Case

---------------------------------

COURT: This is the sentence.

The charges and the facts

The defendant pleaded guilty to one count of robbery, contrary to section 10 of the Theft Ordinance, Cap 210; and one count of assault with intent to rob, contrary to section 10(2) of the same ordinance.

Both offences took place in a one-woman brothel. The facts were these.

In the small hours of 16 March 2012, the defendant went to Madam Chan’s premises to seek sex service. After the service and before making payment, the defendant took out a sharp object and stabbed Madam Chan three times at her right chest, declaring robbery. As a result, Madam Chan surrendered 1,800 Hong Kong dollars cash to the defendant, and he left the premises. Later that day, Madam Chan sought medical treatment and was found to have suffered a right-chest penetrating injury with a one centimetre laceration. She was discharged on the same day.

This is the subject matter of the 1st count.

As for the 2nd count, the events happened in this way.

In the small hours of 10 November 2012, the defendant went to Madam Tse’s premises and sought sex service. Again, after the service and before payment was made, the defendant took out a cutter and declared robbery. The defendant used the cutter to slash Madam Tse’s left hand, causing a two-centimetre laceration wound over her first finger web position, as well as a superficial laceration wound over her middle finger.

While the defendant was searching the handbag which Madam Tse took out and dropped onto the bed, Madam Tse managed to rush out of her room to seek help and to lock the common gate to prevent the defendant from leaving the premises. As a result, the defendant was arrested by the police.

Under caution at the scene, the defendant admitted robbing Madam Tse. Subsequently, when the defendant was interviewed under caution, he further admitted that he had robbed Madam Chan.

After taking the police back to Madam Chan’s premises, the defendant again made full admissions concerning Madam Chan’s robbery when interviewed under caution, and he stated that at the time he used a cutter to injure Madam Chan.

Mitigation

The defendant is aged 31 and was educated up to Form 2 level. He was married in the mainland in 2010, but his wife left the family one year later. The defendant had a clear record prior to the commission of these offences.

Since March 2013, the defendant has been staying at the Siu Lam Psychiatric Centre, having been diagnosed to be suffering from polysubstance abuse and schizophrenia.

As such, I have adjourned sentence till today, pending two updated psychiatric reports on the defendant.

I have now read these updated reports. Both psychiatrists opined that the defendant’s condition has been improved during the remand period.

He is now mentally stable, and although the defendant is suffering from mild to moderate grade mental retardation, no further compulsory inpatient treatment is required.

Miss Chow, for the defendant, told the court that given the defendant’s mental retardation, he was not only bullied at school but was abused even after he had gone out to work.

On one occasion, the defendant’s so-called friends took the defendant out and had him withdraw all the savings from the bank. The defendant, however, has a very supportive mother, a woman who single-handedly brought up her two sons after her husband’s death and who now blames herself for not having properly supervised the defendant.

The defendant’s mother was the one who arranged for the defendant to get married in the mainland, but it was said that the wife’s departure devastated the defendant, and it was around that time that the defendant was introduced to drugs by his friends.

Sentencing considerations

The tariff for armed robbery was laid down in Mo Kwong Sang v R [1981] HKLR 610. Further, in the cases of HKSAR v Cheng Fuk Wa CACC 442/2005, 4 April 2006 (unreported); HKSAR v Lai Kwok Fai CACC 346/2008, 18 March 2009 (unreported); and HKSAR v Tam Kwok Keung [2011] 1 HKLRD 141, the Court of Appeal has made it clear that a deterrent sentence is appropriate in cases like the present one as sex workers in one-woman brothels are vulnerable targets for robbers.

After considering the tariff and the facts of this case, including that the defendant gained entry into these one‑woman brothels by posing himself as a customer, and that he had actually stabbed Madam Chan in her chest, and had slashed Madam Tse’s hand, a starting point of seven years for each of the two counts could not be said to be inappropriate.

However, I take note of the defendant’s background and all that was said on his behalf by Miss Chow. I am prepared to reduce the starting point to one of six-and-a-half years.

The sentences imposed

For the 2nd count, other than the defendant’s plea which would earn him a one-third discount, I find nothing which would warrant any further reduction in sentence. Therefore, the defendant is to serve a term of 52 months for the 2nd count.

However, for the 1st count, although Madam Chan eventually identified the defendant in the identification parade, I give credit to the defendant for confessing to the police his commission of this offence.

At the time when the defendant made those admissions, the police were not aware of his involvement in the robbery of Madam Chan. In other words, without the defendant’s confession, the police did not have any clue as to the identity of the offender. Therefore, on top of the one‑third reduction in respect of the defendant’s plea, which would reduce the sentence from six-and-a-half years to fifty-two months, I am going to further reduce this to a term of forty-four months.

What remains now is the question of totality. These two offences were separate and distinct offences. In principle, the sentences should be served consecutively. However, if I were to order the defendant to serve a total term of 96 months for these two offences, it would be too great a totality.

Given the facts of this case, I consider that a total term of 74 months should sufficiently reflect the criminality of the defendant in these two robberies and I, therefore, order that 22 months of the sentence in respect of the 2nd count is to be served wholly concurrently with that of the 1st count. The remaining 30 months are to be served wholly consecutively, making a total term of 74 months.